United States of America, Plaintiff-appellee, v. Raul Valenzuela-cervantes, Defendant-appellant, 101 F.3d 706 (9th Cir. 1996)

MEMORANDUM^** 

Valenzuela-Cervantes appeals his conviction after conditionally pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326. Valenzuela-Cervantes contends the district court erred when, upon remand, it denied his motion for nationwide discovery to support his selective prosecution claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, United States v. Marshall, 56 F.3d 1210, 1211 (9th Cir. 1995), cert. denied, 116 S. Ct. 1830 (1996), and affirm.

Valenzuela-Cervantes contends that nationwide discovery is warranted because he has produced a study which allegedly shows that among all persons presented for prosecution by the Immigration and Naturalization Service for violations of 8 U.S.C. § 1326, the government prosecutes 88% of all Latinos as compared to 77% of non-Latinos. We disagree.

In order to obtain discovery on a selection prosecution claim based on race, defendant must make a credible showing that the Government declined to prosecute similarly situated suspects of other races. United States v. Armstrong, 116 S. Ct. 1480, 1489 (1996). Valenzuela-Cervantes, previously convicted of at least five offenses under California law, has made no showing that the non-Latinos whom the government declined to prosecute were similarly situated.

AFFIRMED.